United States v. LaVALLEE

• Decision Date: 14 September 1967
• Docket Number: No. 66 Civ. 4520.,66 Civ. 4520.
• Citation: 279 F. Supp. 248
• Parties: UNITED STATES of America ex rel. James NICKENS, Petitioner, v. Hon. J. E. LaVALLEE, as Warden of Auburn State Prison, Auburn, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

279 F. Supp. 248

UNITED STATES of America ex rel. James NICKENS, Petitioner, v. Hon. J. E. LaVALLEE, as Warden of Auburn State Prison, Auburn, New York, Respondent.

No. 66 Civ. 4520.

United States District Court S. D. New York.

September 14, 1967.

Anthony F. Marra, New York City, for petitioner; Joshua N. Koplovitz, New York City, of counsel.

Louis J. Lefkowitz, Atty. Gen., of State of New York, New York City, for respondent; John G. Proudfit, Asst. Atty. Gen., of counsel.

MEMORANDUM

THOMAS F. MURPHY, District Judge.

The Court of Appeals by order dated December 7, 1966, remanded this writ for an evidentiary hearing on the issue of illegal search and seizure. It appeared on our calendar in Part I on August 21st and we held the hearing on August 30, 1967.

Although relator's counsel called Detective McDonnell, the arresting officer, as his first witness and reviewed with him the pertinent events of March 11, 1962, he specifically disclaimed any objection to the arrest without a warrant but based his claim for invasion of the relator's constitutional rights on the searches and seizures that were made after the relator was arrested and brought to the 4th Precinct Station House. Since, however, the preliminary events have a distinct bearing on these subsequent events, a recitation and findings relative thereto are necessary.

Preliminarily, it should be stated that the relator on the day of the hearing, August 30, 1967, was not in the physical custody of the respondent, having been released from prison on June 14, 1967, and placed on parole which will expire in March, 1968. No question has been raised as to the jurisdiction of the court, both sides agreeing that Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) controls.

Detective McDonnell testified that while on duty in the early morning of March 11, 1962, he noticed a New York City Police Department radio car with no occupants, but with both doors opened, parked on Church Street near Chambers Street in the Borough of Manhattan. After talking to the two radio car patrolmen, he walked to an empty store which was under renovation, in front of which was a sealed carton that was leaking liquor. While peering in the door to this store, it opened from the pressure of his body and he noticed a large canvas covering the north wall. Entering the store, he pulled aside this canvas and found a hole in the wall leading into a bar and grill known as the Blarney Castle Bar. He told the patrolmen to report his presence to his precinct and also directed that the owner be notified and directed to come to the premises. Returning to the street, he tried both the Chambers Street and the Church Street entrances to the bar but found them locked. Then noticing a light in an office above the bar, he went to the entrance of that building #149 Church Street. Although the door was closed, it was not locked and he went into the lobby with one patrolman. He noticed that the elevator indicator pointed to the second floor and thereupon rang for the elevator which he and Patrolman Williams then took to the second floor. He stated that prior to entering the elevator he detected a strong odor of liquor in the lobby.

Locating the lighted office, they found the door ajar and saw a man lying on the floor. They entered and McDonnell attempted to arouse this person (later identified as the relator) by kicking the soles of his feet. He and Patrolman Williams then helped relator to his feet. McDonnell stated that it was his opinion that Nickens was drunk. He testified that while in the office he noticed an adjoining room in which he saw a large amount of key making equipment, blank keys, used locks and lock picks. Upon questioning the relator, McDonnell learned that he was the superintendent of the building and that these were his offices.

Thereupon the relator accompanied McDonnell and Williams downstairs to the vacant store, at which time McDonnell noticed that the tarpaulin covering the hole in the wall had been moved aside. Through this hole McDonnell saw Conlon, the owner of the bar, and several officers. Conlon stated that approximately 40 cases of liquor were missing from the stock room. Conlon also identified the relator as being the superintendent of the building and stated that he was a good reliable man.

McDonnell then accompanied Conlon to his stock room in the basement of the bar where he noticed a ripple soled shoe print in the dust on the floor. He further testified that there was a similar print on a piece of yellow paper lying on the floor. At that point he recalled that the relator had been wearing ripple soled shoes. Returning to #149 Church Street, he found the door locked but he was able to enter the building by means of a key produced by Conlon. He then proceeded to the fifth floor where he climbed a stairway to the roof and found Nickens going over to the roof of the adjoining building. After Nickens stated that he was looking for burglars, McDonnell suggested that they search the building together. Relator agreed and they proceeded to the fifth floor. There McDonnell noticed a damp spot and pieces of glass near room...